STATE OF NEW YORK
________________________________________________________________________
5516--B
Cal. No. 766
2019-2020 Regular Sessions
IN SENATE
May 3, 2019
___________
Introduced by Sen. MONTGOMERY -- (at request of the Office of Court
Administration) -- read twice and ordered printed, and when printed to
be committed to the Committee on Children and Families -- reported
favorably from said committee, ordered to first and second report,
amended on second report, ordered to a third reading, and to be
reprinted as amended, retaining its place in the order of third read-
ing -- amended and ordered reprinted, retaining its place in the
order of third reading
AN ACT to amend the family court act and the mental hygiene law, in
relation to the determination of capacity to stand trial in juvenile
delinquency proceedings in family court
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Subdivision 1 of section 322.1 of the family court act, as
2 amended by chapter 566 of the laws of 1994, is amended to read as
3 follows:
4 1. At any proceeding under this article, the court must issue an order
5 that the respondent be examined as provided herein when it is of the
6 opinion that the respondent may be an incapacitated person. Notwith-
7 standing the provisions of this or any other law, the court may direct
8 that the examination be conducted on an outpatient basis [when]. If the
9 respondent is [not] in custody at the time the court issues an order of
10 examination, the examination may be conducted at the place where the
11 respondent is being held in custody so long as no reasonable alternative
12 outpatient setting is available. The court shall order that two quali-
13 fied psychiatric examiners as defined in subdivision seven of section
14 730.10 of the criminal procedure law examine the respondent to determine
15 if he [is mentally ill, mentally retarded or developmentally disabled]
16 or she may be diagnosed as a person with mental illness or an intellec-
17 tual or developmental disability.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09846-04-9
S. 5516--B 2
1 § 2. Subdivision 4, paragraphs (a), (c) and (d) of subdivision 5 and
2 subdivisions 6 and 7 of section 322.2 of the family court act, subdivi-
3 sions 4, 6 and 7 and paragraph (c) of subdivision 5 as added by chapter
4 920 of the laws of 1982, paragraph (a) of subdivision 5 as amended by
5 section 69 of part WWW of chapter 59 of the laws of 2017, and paragraph
6 (d) of subdivision 5 as amended by chapter 41 of the laws of 2010, are
7 amended to read as follows:
8 4. If the court finds that there is probable cause to believe that the
9 respondent committed a misdemeanor, the respondent shall be committed to
10 the custody of the appropriate commissioner for a reasonable period not
11 to exceed ninety days. Unless the court specifies that such commitment
12 shall be in a residential facility, such commissioner having custody may
13 arrange for treatment in an appropriate facility or program, including
14 an outpatient program, in accordance with subdivision (e) of section
15 7.09 or subdivision (c-1) of section 13.09 respectively, of the mental
16 hygiene law. The court shall dismiss the petition on the issuance of the
17 order of commitment and such dismissal shall constitute a bar to further
18 prosecution of the charge or charges contained in the petition.
19 (a) If the court finds that there is probable cause to believe that
20 the respondent committed a felony, it shall order the respondent commit-
21 ted to the custody of the commissioner of mental health or the commis-
22 sioner of the office for people with developmental disabilities for an
23 initial period not to exceed one year from the date of such order.
24 Unless the court specifies that such commitment shall be in a residen-
25 tial facility, such commissioner having custody may arrange for treat-
26 ment in an appropriate facility or program, including an outpatient
27 program, in accordance with subdivision (e) of section 7.09 or subdivi-
28 sion (c-1) of section 13.09 respectively, of the mental hygiene law.
29 Such period may be extended annually upon further application to the
30 court by the commissioner having custody or his or her designee. Such
31 application must be made not more than sixty days prior to the expira-
32 tion of such period on forms that have been prescribed by the chief
33 administrator of the courts. At that time, the commissioner must give
34 written notice of the application to the respondent, the counsel repres-
35 enting the respondent and the mental hygiene legal service if the
36 respondent is at a residential facility. Upon receipt of such applica-
37 tion, the court must conduct a hearing to determine the issue of capaci-
38 ty. If, at the conclusion of a hearing conducted pursuant to this subdi-
39 vision, the court finds that the respondent is no longer incapacitated,
40 he or she shall be returned to the family court for further proceedings
41 pursuant to this article. If the court is satisfied that the respondent
42 continues to be incapacitated, the court shall authorize continued
43 custody of the respondent by the commissioner in a facility or program
44 for a period not to exceed one year. Such extensions shall not continue
45 beyond a reasonable period of time necessary to determine whether the
46 respondent will attain the capacity to proceed to a fact finding hearing
47 in the foreseeable future but in no event shall continue beyond the
48 respondent's eighteenth birthday or, if the respondent was at least
49 sixteen years of age when the act was committed, beyond the respondent's
50 twenty-first birthday.
51 (c) If the court finds that there is probable cause to believe that
52 the respondent has committed a designated felony act, the court shall
53 require that treatment be provided in a residential facility within the
54 appropriate office of the department of mental hygiene or in an outpa-
55 tient facility if the commissioner having custody of the child petitions
S. 5516--B 3
1 the court pursuant to subdivision seven of this section and such court
2 approves.
3 (d) The commissioner shall review the condition of the respondent
4 within forty-five days after the respondent is committed to the custody
5 of the commissioner. He or she shall make a second review within ninety
6 days after the respondent is committed to his or her custody. Thereaft-
7 er, he or she shall review the condition of the respondent every ninety
8 days. The respondent and the counsel for the respondent, shall be noti-
9 fied of any such review and afforded an opportunity to be heard. The
10 commissioner having custody shall apply to the court for an order
11 dismissing the petition whenever he or she determines that there is a
12 substantial probability that the respondent will continue to be incapac-
13 itated for the foreseeable future. At the time of such application the
14 commissioner must give written notice of the application to the respond-
15 ent, the presentment agency and the mental hygiene legal service if the
16 respondent is at a residential facility. Upon receipt of such applica-
17 tion, the court may on its own motion conduct a hearing to determine
18 whether there is substantial probability that the respondent will
19 continue to be incapacitated for the foreseeable future, and it must
20 conduct such hearing if a demand therefor is made by the respondent or
21 the mental hygiene legal service within ten days from the date that
22 notice of the application was given to them. The respondent may apply to
23 the court for an order of dismissal on the same ground.
24 6. Any order pursuant to this section dismissing a petition shall not
25 preclude an application for voluntary or involuntary care and treatment
26 in a facility or program of the appropriate office of the department of
27 mental hygiene pursuant to the provisions of the mental hygiene law.
28 Unless the respondent is admitted pursuant to such an application he or
29 she shall be released.
30 7. If the commissioner having custody of a child committed to a resi-
31 dential facility pursuant to subdivision four or paragraph (a) of subdi-
32 vision five of this section determines at any time that such child may
33 be more appropriately treated in a non-residential facility or on an
34 outpatient basis, he or she may arrange for such treatment. If the
35 commissioner having custody of a child committed to a residential facil-
36 ity pursuant to paragraph (c) of subdivision five of this section deter-
37 mines at any time that such child may be more appropriately treated in a
38 non-residential facility or on an outpatient basis, he or she may peti-
39 tion the family court for a hearing. If the court finds after a hearing
40 that treatment in a non-residential facility or on an outpatient basis
41 would be more appropriate for such child, the court shall modify its
42 order of commitment to [authorize] direct the commissioner to transfer
43 [of such] the child to a non-residential facility or arrange outpatient
44 treatment. Application for [such] a hearing to determine whether any
45 child committed to a residential facility under subdivisions four or
46 five of this section may be more appropriately treated in a non-residen-
47 tial facility or on an outpatient basis may be made by the respondent.
48 § 3. Subdivision (e) of section 7.09 of the mental hygiene law, as
49 amended by chapter 920 of the laws of 1982 and as relettered by chapter
50 509 of the laws of 1988, is amended to read as follows:
51 (e) The commissioner shall accept custody of a juvenile under an order
52 issued by the family court pursuant to the provisions of section 322.2
53 of the family court act. He or she may place the juvenile in any appro-
54 priate facility or program under his or her jurisdiction, but he or she
55 shall comply with any order requiring treatment in a residential facili-
56 ty made pursuant to paragraph (c) of subdivision five of section 322.2
S. 5516--B 4
1 of the family court act, unless, after a hearing held in accordance with
2 subdivision seven of section 322.2 of the family court act, the court
3 modifies the order. In determining the appropriate placement, the
4 commissioner shall be furnished with a copy of the findings of the court
5 pursuant to subdivision four or five of section 322.2 of the family
6 court act and shall consider the nature of the act alleged in such find-
7 ings and the level of the juvenile's mental disability. The commissioner
8 shall review the condition of the juvenile in accordance with the
9 requirements of section 322.2 of the family court act and he or she may
10 petition the family court at any time for any relief authorized by such
11 section.
12 § 4. Subdivision (c) of section 13.09 of the mental hygiene law, as
13 amended by chapter 920 of the laws of 1982, is amended to read as
14 follows:
15 [(c)] (c-1) The commissioner shall accept custody of a juvenile under
16 an order issued by the family court pursuant to the provisions of
17 section 322.2 of the family court act. He or she may place the juvenile
18 in any appropriate facility or program under his or her jurisdiction,
19 but he or she shall comply with any order requiring treatment in a resi-
20 dential facility made pursuant to paragraph (c) of subdivision five of
21 section 322.2 of the family court act, unless, after a hearing held in
22 accordance with subdivision seven of section 322.2 of the family court
23 act, the court modifies the order. In determining the appropriate place-
24 ment, the commissioner shall be furnished with a copy of the findings of
25 the court pursuant to subdivision four or five of section 322.2 of the
26 family court act and shall consider the nature of the act alleged in
27 such findings and the level of the juvenile's mental disability. The
28 commissioner shall review the condition of the juvenile in accordance
29 with the requirements of section 322.2 of the family court act and he or
30 she may petition the family court at any time for any relief authorized
31 by such section.
32 § 5. This act shall take effect on the ninetieth day after it shall
33 have become a law; provided, however, that the amendments made to para-
34 graph (a) of subdivision 5 of section 322.2 of the family court act made
35 by section two of this act shall take effect on the same date and in the
36 same manner as section 69 of part WWW of chapter 59 of the laws of 2017,
37 takes effect.